A-45801, JANUARY 18, 1933, 12 COMP. GEN. 495

A-45801: Jan 18, 1933

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" ARE NOT APPLICABLE TO WITNESSES WHO TESTIFIED PRIOR TO JULY 1. THE COMMISSIONER'S LETTER IS. WITH RESPECT TO THE REMAINING ITEMS OF COSTS CLAIMED CONTAINED THE FOLLOWING STATEMENT: "THE ADJUSTMENT OF THE ITEM "WITNESS FEES $114.60" WILL BE THE BASIS OF A SEPARATE COMMUNICATION FROM THIS OFFICE.'. ITEMIZED RECEIPTS SHOWING THE MILEAGE AND PER DIEM ARE AS FOLLOWS: TABLE H. SUBSISTENCE IS AS FOLLOWS: CHART WITNESS DAYS FEES MILES MILEAGE SUBSISTENCE TOTAL H. - 73.60 21.00 114.60 INQUIRY IS MADE IN SAID LETTER AS TO (A) WHETHER. IT IS. APPARENT THAT SUCH WITNESSES AS TESTIFIED IN THE CASE MUST HAVE DONE SO PRIOR TO JULY 1. THERE IS NOTHING IN THE LANGUAGE QUOTED WHICH MAKES THE PROVISION OF THE ACT APPLICABLE TO FEES OF WITNESSES WHO TESTIFIED PRIOR TO JULY 1.

A-45801, JANUARY 18, 1933, 12 COMP. GEN. 495

ECONOMY ACT - WITNESS FEES - PER DIEM IN LIEU OF SUBSISTENCE THE PROVISIONS OF SECTION 323 OF THE ECONOMY ACT THAT DURING THE FISCAL YEAR 1933 "THE PER DIEM FEE AUTHORIZED TO BE PAID TO WITNESSES UNDER SECTION 3 OF THE ACT OF APRIL 26, 1926, 44 STAT. 324, SHALL BE $1.50 INSTEAD OF $2, AND THE PROVISO OF SAID SECTION 3, RELATIVE TO PER DIEM FOR EXPENSES OF SUBSISTENCE, SHALL BE SUSPENDED," ARE NOT APPLICABLE TO WITNESSES WHO TESTIFIED PRIOR TO JULY 1, 1932.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, JANUARY 18, 1933:

THERE HAS BEEN RECEIVED, PRESUMABLY BY YOUR DIRECTION, LETTER OF NOVEMBER 14, 1932, FROM THE COMMISSIONER OF INTERNAL REVENUE (IT:C:ECW), IN REFERENCE TO CERTAIN ITEMS OF WITNESS FEES AGGREGATING $114.60 ALLOWED AS PART OF THE COSTS IN THE CASE OF CONTINENTAL PIPE MANUFACTURING COMPANY V. BURNS POE, COLLECTOR, IN THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF WASHINGTON, NORTHERN DIVISION.

THE COMMISSIONER'S LETTER IS, IN PART, AS FOLLOWS:

THE CERTIFICATE OF OVERASSESSMENT PROVIDED FOR THE PAYMENT OF $100.56 COSTS, AND WITH RESPECT TO THE REMAINING ITEMS OF COSTS CLAIMED CONTAINED THE FOLLOWING STATEMENT:

"THE ADJUSTMENT OF THE ITEM "WITNESS FEES $114.60" WILL BE THE BASIS OF A SEPARATE COMMUNICATION FROM THIS OFFICE.'

THE ATTORNEY FOR THE TAXPAYER, BY LETTER DATED SEPTEMBER 26, 1932, STATED AS FOLLOWS:

"4. WITNESS FEES $114.60. ITEMIZED RECEIPTS SHOWING THE MILEAGE AND PER DIEM ARE AS FOLLOWS:

TABLE

H. P. PRATT, SEATTLE, 2 DAYS AND 2 MILES----------------------- $4.20

PATRICK J. O-BRIEN, KETTLE FALLS, WASHINGTON, 2 DAYS, 100 MILES 20.00

D. H. KELLY, KETTLE FALLS, WASHINGTON, 1 DAY, 100 MILES-------- 15.00

S. L. SAVAGE, KETTLE FALLS, WASHINGTON, 1 DAY, 100 MILES------- 15.00

G. W. FRANCIS, KETTLE FALLS, WASHINGTON, 1 DAY, 100 MILES------ 15.00

A. C. MCPHERSON, KETTLE FALLS, WASHINGTON, 1 DAY, 100 MILES-----15.00

E. F. BENSON, TACOMA, WASHINGTON, 1 DAY, 34 MILES--------------- 5.40

HERMAN HOERSCH, SALT CREEK, WYOMING, 1 DAY, 200 MILES---------- 25.00

114.60

"IN CONNECTION WITH THE WITNESS FEES, ALLOWED AS ABOVE DETAILED, WE CALL ATTENTION TO THE FACT THAT IN THE CASE OF WITNESSES RESIDING MORE THAN THIRTY MILES FROM THE PLACE OF TRIAL, THE PER DIEM INCLUDES A SUBSISTENCE ALLOWANCE OF THREE DOLLARS, AND THAT THIS APPLIED TO ALL WITNESSES EXCEPT H. P. PRATT AND E. F. BENSON.'

FROM THE EVIDENCE SUBMITTED, IT APPEARS THAT THE CLAIM FOR FEES OF WITNESSES, MILEAGE, AND SUBSISTENCE IS AS FOLLOWS:

CHART

WITNESS DAYS FEES MILES MILEAGE SUBSISTENCE TOTAL H. P. PRATT--------- 2

$4.00 2 $0.20 ----------- $4.20 PATRICK J. O-BRIEN-- 2 4.00 100 10.00 $6.00 20.00 D. H. KELLY--------- 1 2.00 100 10.00 3.00 15.00 S. L. SAVAGE- ------- 1 2.00 100 10.00 3.00 15.00 G. W. FRANCIS------- 1 2.00 100 10.00 3.00 15.00 A. C. MCPHERSON----- 1 2.00 100 10.00 3.00 15.00 E. F. BENSON-- ------1 2.00 34 3.40 ----------- 5.40 HERMAN HOERSCH------ 1 2.00 200 20.00 3.00 25.00

TOTAL CLAIMED-- ----- 20.00 ----- 73.60 21.00 114.60

INQUIRY IS MADE IN SAID LETTER AS TO (A) WHETHER, IN VIEW OF SECTION 323 OF THE ACT APPROVED JUNE 30, 1932, 47 STAT. 413, THE WITNESS FEES SHOULD BE $1.50 INSTEAD OF $2 PER DAY, AND (B) WHETHER, IF A CERTIFICATE OF THE COURT BE OBTAINED AS TO THE SUBSISTENCE ITEMS, SUCH ITEMS MAY BE ALLOWED. THE LETTER FURTHER SUGGESTS THE QUESTION AS TO WHETHER MILEAGE ALLOWANCE TO THE WITNESS, HERMAN HOERSCH, SHOULD BE LIMITED TO 100 MILES INSTEAD OF 200 MILES AS ALLOWED IN THE STATEMENT OF COSTS.

IT APPEARS FROM A CERTIFIED COPY OF THE JUDGMENT IN SAID CAUSE FILED IN THIS OFFICE WITH THE CERTIFICATE OF OVERASSESSMENT THAT THE CASE CAME ON FOR TRIAL ON APRIL 15, 1931. THE CERTIFIED COPY SHOWS THE DATE OF THE JUDGMENT TO BE OCTOBER 29, 1931. IT IS, THEREFORE, APPARENT THAT SUCH WITNESSES AS TESTIFIED IN THE CASE MUST HAVE DONE SO PRIOR TO JULY 1, 1932. SECTION 323 OF THE ACT REFERRED TO PROVIDES THAT:

DURING THE FISCAL YEAR 1933---

* * * THE PER DIEM FEE AUTHORIZED TO BE PAID TO WITNESSES UNDER SECTION 3 OF THE ACT OF APRIL 26, 1926 (44 STAT. 323), SHALL BE $1.50INSTEAD OF $2, AND THE PROVISO OF SAID SECTION 3, RELATIVE TO PER DIEM FOR EXPENSES OF SUBSISTENCE, SHALL BE SUSPENDED.

THERE IS NOTHING IN THE LANGUAGE QUOTED WHICH MAKES THE PROVISION OF THE ACT APPLICABLE TO FEES OF WITNESSES WHO TESTIFIED PRIOR TO JULY 1, 1932, BUT WHO MAY NOT BE PAID UNTIL THEREAFTER AND IN THIS CASE, THEREFORE, THE RATE OF $2 PER DIEM FOR WITNESSES IS PROPER.

FOR THE SAME REASONS, THE SUSPENSION DURING THE FISCAL YEAR 1933 OF THE SUBSISTENCE ALLOWANCE OF WITNESSES IS NOT APPLICABLE TO A WITNESS WHO APPEARED AS SUCH IN A CASE PRIOR TO JULY 1, 1932, BUT WHO MAY NOT HAVE BEEN PAID UNTIL THEREAFTER, PROVIDED HE IS OTHERWISE ENTITLED TO THE SAME AND THE COURT SO CERTIFIES IN ACCORDANCE WITH THE STATUTE. IN THE INSTANT CASE, HOWEVER, IT APPEARS THAT FOUR OF THE WITNESSES TO WHOM A SUBSISTENCE ALLOWANCE WAS INCLUDED AS A PART OF THE COSTS ATTENDED COURT FOR BUT ONE DAY AND RESIDED ONLY 100 MILES FROM THE POINT WHERE THE COURT WAS HELD. IN THIS CONNECTION SEE 6 COMP. GEN. 835.

IN REGARD TO THE MATTER OF MILEAGE ALLOWANCE, THE DECISIONS OF THE FEDERAL COURTS ARE NOT UNIFORM AS TO THE DISTANCES FOR WHICH MILEAGE MAY BE ALLOWED A WITNESS LIVING OUT OF THE DISTRICT IN WHICH THE COURT IS HELD. THE WEIGHT OF AUTHORITY APPEARS TO BE THAT MILEAGE FOR SUCH WITNESSES IS NOT ALLOWABLE IN EXCESS OF 100 MILES FROM WHERE THE COURT IS HELD AND THAT APPEARS TO BE THE RULE LAID DOWN BY THE FEDERAL CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT, WHICH IS THE CIRCUIT IN WHICH THE DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, THE COURT WHICH RENDERED THE JUDGMENT IN THE INSTANT CASE, IS LOCATED. IT WOULD APPEAR, THEREFORE, THAT, IF THE WITNESS HOERSCH, LIVED OUT OF THE DISTRICT IN WHICH THE COURT WAS HELD, AND HE APPARENTLY DID, MILEAGE ALLOWANCE TO HIM SHOULD HAVE BEEN LIMITED TO 100 MILES.

HOWEVER, SINCE THE JUDGMENT IN THE INSTANT CASE SPECIFICALLY FIXES THE AMOUNT OF THE COSTS, TO WIT, $215.16, WHICH AMOUNT IS APPARENTLY COMPRISED OF THE ITEM OF $100.56, COSTS HERETOFORE PAID, AND THE AMOUNT OF $114.60, REFERRED TO IN THE COMMISSIONER'S LETTER, AND SINCE THE JUDGMENT HAS BEEN AFFIRMED BY THE CIRCUIT COURT OF APPEALS AND HAS BECOME FINAL, NO QUESTION WILL BE RAISED BY THIS OFFICE, IN THIS CASE, IN RESPECT TO THE SUBSISTENCE ITEMS MENTIONED--- IF THE COURT MAKES THE CERTIFICATE PROVIDED FOR UNDER THE STATUTE--- OR IN RESPECT OF THE MILEAGE ALLOWANCE OF 200 MILES TO THE WITNESS, HOERSCH, AS INCLUDED IN THE COSTS, AFTER THEY HAD BEEN ACTUALLY PAID BY THE PLAINTIFF IN THE CASE TO THE WITNESSES.

HOWEVER, IT WOULD APPEAR TO BE THE DUTY OF THE UNITED STATES ATTORNEYS IN SUCH CASES TO SCRUTINIZE CAREFULLY ITEMS SUBMITTED FOR ALLOWANCE AS COSTS AND TO MAKE PROPER OBJECTION TO SUCH OF THE ITEMS AS APPEAR TO BE NOT ALLOWABLE UNDER THE LAW.